Friday, January 13, 2012

The Politics of Birthright Citizenship in Historical Perspective

[The Center for the History of the New America Announces its inaugural conference, “Born in the USA: The Politics of Birthright Citizenship in Historical Perspective.” It will be held on March 29 & 30, 2012, at the University of Maryland at College Park. It is co-sponsored by the Institute for Constitutional History and the University of Maryland Francis Carey King Law School. The conference is free and open to the public. Its organizers explain:]

Next March, an interdisciplinary group of prominent academics, lawyers, jurists, and political figures will assemble in College Park for the Center for the History of a New America's first major conference. Their goal: to place in historical perspective the current debate as to whether the United States ought to reconsider birthright citizenship, which grants automatic citizenship to most persons born on the soil of the United States. Birthright citizenship is part of the Constitution, having been put there by the Fourteenth Amendment, ratified in 1868. It has given the United States one of the most liberal citizenship regimes in the world, and it has helped to build America's reputation as a land of immigrants, where anyone can come to seek opportunity, liberty, and equality in a regime of laws that does not discriminate on the basis of race, creed, or national origins.

Some who want to eliminate birthright citizenship argue that it has acted as a perverse incentive for immigrants to seek illegal entry to the United States. Birthright citizenship, some argue, permits illegal immigrants to think that they can find a route to permanent residence and security in the United States by giving birth to children on American soil. Their children, who become American citizens upon birth, the argument goes, will "anchor" the illegal parents to America, thus rewarding behavior that ought to be punished. The state of Arizona is at the forefront of this campaign against birthright citizenship, as it is for other aspects of the campaign against illegal immigrants. In the short term, anti-illegal immigrant forces in the state hope to trigger a legal challenge to a nineteenth century Supreme Court ruling that declared that a child born to non-citizens on American soil is in fact an American citizen. In the long term these forces hope to stimulate a national campaign to amend the Fourteenth Amendment.

As with many issues regarding immigration, the debate sometimes proceeds with a lot of passion and without a strong knowledge of history. Here are some questions that would benefit from a robust exploration: First, how aware were the framers of the Fourteenth Amendment about the immigration question? To the extent to which they were, what were their thoughts about immigration and birthright citizenship? What do we know of the original intent of the framers of the Fourteenth Amendment's citizenship clause? Second, why did the Supreme Court in 1898 uphold birthright citizenship for the children of non-citizens? And why in some cases were Native Americans treated differently with regard to birthright citizenship? Third, how well or how poorly did birthright citizenship work for America, in regards both to legal and illegal immigration, over the course of American history after 1868? On balance, has birthright citizenship been a source of cohesion or discord, of Americanization or cultural balkanization, in American life? Fourth, what evidence can be marshaled to show that illegal immigrants today are motivated to come by the promise of birthright citizenship for their children? And, finally, what would be the consequences to the Constitution, to personal liberties, and to immigration of a successful effort to remove birthright citizenship from the Fourteenth Amendment?